Madras High Court

Dharvees Mydeen vs The Commissioner Of Police on 2 August, 2022

                                                                          Crl.O.P.(MD) No.13928 of 2022


                         BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED: 02.08.2022

                                                       CORAM

                                  THE HONOURABLE MR. JUSTICE V.SIVAGNANAM

                                          CRL.O.P (MD) No.13928 of 2022

                     Dharvees Mydeen                           ... Petitioner/Aggrieved Person

                                                          Vs

                     1. The Commissioner of Police,
                        Madurai City.

                     2. The Deputy Commissioner of Police,
                        (Crimes) Madurai City.

                     3. The Inspector of Police,
                        Anti – Land Grabbing Special Cell,
                        Madurai City.

                     4. Sethu Mani Madhavan,
                        Anti – Land Grabbing Special Cell,
                        Madurai City.

                     5. Sindhu                                     ... Respondents/ Respondents

                     PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
                     praying to direct the fourth respondent not to interfere into the petitioner's
                     property right by forcing him to vacate the premises in D.No.20, 70 feet
                     road, Ellis Nagar, Madurai in support of the fourth respondent by causing an
                     enquiry on her complaint.

                     1/14


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                                                                               Crl.O.P.(MD) No.13928 of 2022




                                              For Petitioner      : Mr.R.Anand

                                              For R1 to R3        : Mr.A.Albert James,
                                                                    Government Advocate (Crl.Side)

                                                             ORDER

This Criminal Original Petition has been filed for a direction to the

fourth respondent not to interfere into the petitioner's property right by

forcing him to vacate the premises in D.No.20, 70 feet road, Ellis Nagar,

Madurai in support of the fourth respondent, by causing an enquiry on her

complaint.

2. The learned counsel for the petitioner submitted that the petitioner

is the owner of the property but the fifth respondent is claiming right over

the property. In this regard, the fifth respondent has given a complaint to the

third respondent. The third respondent summoned the petitioner for enquiry

and also directed him to vacate the premises. He further submitted that the

respondent police cannot be directed to evict him. Hence, the petitioner has

came up with this petition.

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3. In support of his contention, the learned counsel for the petitioner

placed reliance on the following decisions:-

(i) Arnesh Kumar vs. State of Bihar and another (2015-1-L.W.(Crl.) 318),

(ii) L.N.Nithyanantham vs. the State and others (Crl.O.P(MD)No.1776 of 2021,

(iii) Dorand and others vs. the Superintendent of Police, Nagercoil and other another [2016(2)CTC 286:

                                   (2016)2 MLJ CRL 437],
                                         (iv) Shanmugavadivel and others               vs.     The

Superintendent of Police, Theni District, Theni and another [2015-2-L.W.(Crl.) 627],

(v) Jagdish Shrivastav vs. the State of Maharashtra and another [S.L.P (Crl.)No.1758 of 2022] and

(vi) Abhyanand Sharma @ Tinku Sharma vs. State of Bihar and another [W.P.(Crl)No.420 of 2021].

4. When the matter is taken up for hearing today, the learned

Government Advocate (Criminal Side) appearing for the respondent police

submitted that the fifth respondent is claiming right over the property. On

the complaint, the third respondent issued summon to the petitioner to

appear for enquiry with documents. Now the petition is under enquiry.

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5. I have considered the matter in the light of the submissions made

by the learned counsel for the petitioner and the learned Government

Advocate (Criminal Side) appearing for the respondent police.

6 .In this original petition, the petitioner seeks a direction of this

Court against the respondent police not to harass him under the guise of

enquiry.

7. The inherent power under Section 482 Cr.P.C envisages three

circumstances, under which, inherent jurisdiction may be exercised, namely,

(1) to give effect to an order under the Code, (2) to prevent abuse of the

process of the Court and (3) to otherwise secure ends of justice. The rule of

inherent power has its source in the maxim “Quando lex aliquid alique,

concedit conceditur et id sine quo res ipsa esse non potest”” it means that

when the law gives a person anything, it gives him that without which the

thing itself cannot exist.

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8. In the instant case, the fifth respondent gave a complaint against

the petitioner alleging some offences. But, according to the petitioner, the

dispute between him and the private respondent is in civil nature.

9. The criminal proceedings are not a short cut of other remedies

available in law. The respondent police on investigation of the complaint, if

found that the parties are essentially seeking redressal of their civil claim,

the police may follow the procedure as contemplated under Section 157(1)

(b) of Cr.P.C.

10. The power of investigation officer is statutory one. The power to

investigate into the cognizable offence is to be legitimately exercised in

strict compliance with the provision of Chapter XII of the Code. There is

no unlimited discretion to act according to one's own choice. The power to

investigate must be exercised strictly on the condition of which that power

is granted by the Code itself. Further, the investigation officer is

empowered to collect evidence/material during investigation and arrive at a

conclusion independently. This Court would not ordinarily interfere with

the functioning of an Investigating Agency. It may do so only in

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exceptional circumstances.

11. In Lalithakumari vs. State of U.P [AIR 2014 SC 187], the

Hon'ble Constitution Bench of the Hon'ble Supreme Court summarized law

and gave following directions with regard to registration of F.I.R. For better

appreciation, it is reproduced hereunder:-

(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

(iv) The police officer cannot avoid his duty of

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registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are : (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

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(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

12. Further, the Hon'ble Apex Court in Arneshkumar vs. State of

Bihar and another [2015-1-L.W. (Crl.) 318] has directed the police officer

to follow up the provisions of 41A Cr.P.C and do not arrest the accused

unnecessarily and gave the following directions:-

(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

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(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

(6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

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13.The learned Government Advocate (Criminal Side) brought to the

knowledge of this Court to the consolidated instructions given to the police

officer by the Director General of Police, Chennai in Rc.No.521017/Crime

3(2)/2020 dated 25.01.2021.

14.On perusal of the consolidated instructions, it is seen that the

Director General of Police, Chennai gave instructions to all the police based

on the Judgments of the Hon'ble Supreme Court in the cases of D.K.Basu

vs. State of West Bengal [AIR (1997) SC 610] and Arneshkumar vs

State of Bihar (supra) and also referred the order of this Court in Crl.O.P.

(MD)Nos.12665 and 12666 of 2020 with regard to treating the common

man who approached the police station and handling the complaint given by

the aggrieved person and the procedure to be followed in the arrest of

accused as per Section 41(1)(b) Cr.P.C.

15. This Court, by its order dated 01.02.2016 in Crl.O.P(MD)No.1727

of 2016 considered the similar prayer for the direction. The learned Judge

of this Court in this case, observed the Code of Criminal Procedure

“nowhere contemplates the remedy of title not to harass”. For better

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appreciation, para 6 of the order is extracted hereunder:-

“6.When someone lodges a complaint, the bonafides of which is doubted by the Police Officer, he may choose to make a preliminary enquiry. This happens mostly in cheating cases, because, experience shows that, people frequently rush to the police for help even in purely civil and commercial transaction. If Police do not register an FIR immediately, the complaint rushes to this Court under Section 482 Cr.P.C for a direction to the register an FIR. When a direction to enquire is issued by this Court on the complainant's petition, the Police perforce will have to call the adverse party for enquiry. Immediately, the adverse party rushes to this Court with a? Not to Harass? Petition. If a? Not to Harass? order is passed, that is used as a shield by the adverse party to avoid appearance for police enquiry. On one hand, this Court directs Police to conduct an enquiry on the complaint of a person and in the same breath, if a? Not to harass? order is passed, at the instance of the adverse party, the Police will only be in a quandary.”

16. In view of the above legal and factual position, I hereby direct the

respondent police to follow the directions given by the Hon'ble Apex Court

in the case of Arneshkumar (supra) with regard to handling the complaint

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and follow the guidelines stated by the Hon'ble Apex Court in the case of

D.K.Basu (supra) and the Consolidated Instructions dated 25.01.2021

issued by the Director General of Police, Chennai. If the police is not

following the above legal principles, it is inevitable to meet the

consequences of violation of law. Further, the third respondent is permitted

to conduct investigation upon the complaint given by the fifth respondent

without directing the petitioner to evict the premises and complete the

investigation on merits and in accordance with law, with in a period of four

weeks, from the date of receipt of a copy of this order.